Do No Harm: An Analysis of the Legal and Social Consequences of Child Visitation Determinations for Incarcerated Perpetrators of Extreme Acts of Violence Against Women

Abstract

The right of an individual in the “care, custody, and management of his or her children is one of the interests that “form the core of our definition of ‘liberty.” The Supreme Court of the United States has held consistently that the liberty interest guaranteed by the Due Process Clause of the Fourteenth Amendment includes an individual’s right to raise his or her children. Directly connected to this liberty interest in rearing one’s children is a parent’s freedom from government interference. Legal scholars and students of the law have expanded upon this reasoning to argue in support of incarcerated parents’ interest in a continuing relationship with their children-specifically, an entitlement to prison visitation. Unlike the recognized parental liberty right in rearing one’s child, a parent’s right to visitation remains the subject of open debate.

Courts have found that imprisonment alone is an insufficient basis upon which to deny a parent continued contact with his or her child. At the same time, courts also suggest that incarceration does not create an automatic right to visitation. While research suggests prison visitation can benefit parent-child bonding, which is essential to the healthy development of children, it also indicates that the nature of the parent-child bond is a significant factor to be considered in determining visitation rights.